Minister of Home Affairs and Another v Fourie and Another; Lesbian and Gay Equality Project and Others v Minister of Home Affairs and Others

Two women, Marié Adriaana Fourie and Cecelia Johanna Bonthuys, who had been in a committed same-sex relationship for many years, sought to have their relationship recognised as a marriage under South African law. The common law definition of marriage limited marriage to a union between one man and one woman, and the Marriage Act 25 of 1961 prescribed marriage formulae that assumed opposite-sex spouses. Their attempts to secure recognition through the High Court and Supreme Court of Appeal led to findings that the exclusion of same-sex couples from marriage constituted unfair discrimination, but disagreement remained as to the appropriate remedy and the interaction between the common law and the Marriage Act. Parallel litigation by the Lesbian and Gay Equality Project directly challenged the constitutionality of the statutory framework. Both matters were heard together by the Constitutional Court.

The Court declared that the common law definition of marriage and the Marriage Act 25 of 1961 were unconstitutional to the extent that they excluded same-sex couples from marriage. The declaration of invalidity was suspended for 12 months to allow Parliament to enact legislation correcting the defect. The Court ordered that if Parliament failed to do so within the stipulated period, the Marriage Act would automatically be read to include same-sex couples.

This landmark judgment paved the way for the legal recognition of same-sex marriage in South Africa and directly led to the enactment of the Civil Union Act 17 of 2006. It affirmed that sexual orientation is a protected ground under the equality clause and that same-sex couples are entitled to equal dignity and status in family life. The case is a cornerstone of South African equality jurisprudence and a globally influential decision on LGBTQ+ rights.